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The Chilling Effect

One of the many arguments put forward by opponents to freedom of information access is that the potential disclosure of information relating to the formation of public policy will inhibit free and frank discussions – the so-called chilling effect.

This argument is often invoked when Government departments seek to rely on the exemption at section 35 of the Freedom of Information Act 2000. Section 35(1)(a) provides that information is exempt from disclosure if it relates to the formulation or development of government policy, but the exemption is qualified. This means that the exemption can only be applied if the public interest in disclosure of the relevant information does not outweigh the pubic interest in the information being withheld by the relevant public authority.

To see this work in practice, look up the recent Information Commissioner’s Decision Notice to the Department of Health. In the Notice, the Information Commissioner considered the chilling effect argument, but in that case came to the view that the public interest in accountability and transparency for the Department of Health’s decision making, with the Department having to provide reasoned explanations for its public health guidance, meant that disclosure was ordered.

The request asked for information relating to the Department of Health’s guidance that women who are pregnant or trying to conceive should not drink any alcohol. Thinking of possible real-life chilling effects and a pre-conception alcohol ban, we cannot help being reminded of a silly country song from the ’70s, whose chorus went:

If they had one when all our dad’s were young men,
Most of us wouldn’t be here tonight!